How to Prepare for Your Day in Family Law Court: Part I

March 14, 2014

family-law-court.jpgDuring a dissolution case, also known as a divorce, you will likely be required to attend a court hearing at some point during the process. Regardless of what type of hearing it is, getting oriented with the family law court and properly preparing yourself for your day in court is half the battle.

Mental Preparation

Whether or not you are being represented by an attorney, it is important that you come to court well-rested and ready to participate in the proceedings with a clear mind. Family Court hearings can be quite stressful and emotional draining so getting the proper amount of rest will surely help your mental well-being.

If you have not been to the courthouse before, be sure to get proper directions, figure out how long it will take you to get there and look into the parking facilities. Knowing where you are going and giving yourself enough time to get there will help alleviate some of the stress that you will inevitably be feeling. Also, it is important to make sure that you have any necessary paperwork ready to go the night before so that you don't have to worry about rushing on the morning of your court date.

What to Bring and What Not to Bring With You

Courts require payment by the parties for the Court Reporter on certain days and for certain hearings. Be sure to have your checkbook with you when you come to court so that you are prepared if a payment needs to be made for your share of the Court Reporter's charges.

On the other hand, be sure to leave anything that might be considered a weapon at home as most courthouses have metal detectors at the front door.

What to Do When You Arrive

If you are represented by legal counsel make arrangements with your attorney where to meet once you get to court. Typically, attorneys will meet their clients in the hallway outside of the courtroom where your hearing is taking place. If you are not currently represented by legal counsel then go directly to the courtroom designated for your hearing. A calendar will be posted right outside of the courtroom which will list the cases scheduled for that day. Confirm that your case is listed on the calendar to make sure that you are indeed at the right courtroom.

Once you are inside the courtroom you might be interested in orienting yourself with the court personnel and order of events. For detailed information, please read "How to Prepare for Your Day in Family Law Court: Part II", which will be posted March 18, 2014.

Continue reading "How to Prepare for Your Day in Family Law Court: Part I" »

New York Dad Loses Custody Battle Over Fast Food Dispute

dad-mcdonalds-custody-battle-1.jpgIn the midst of a New York divorce case, father David Schorr gave his son a common ultimatum when his son demanded McDonald's for dinner - "you can have dinner from anywhere besides McDonald's or have no dinner at all". In response, the stubborn five-year-old decided to have no dinner at all and threw a tantrum. Schorr immediately regretted the harsh position he had taken with his son but felt it was inappropriate to back down in response to his child's outburst. While trying to convince his son to change his mind, Schorr took his son back to his mother's house early and waited for her to return home.

In the Schorr divorce, the court appointed a neutral psychologist to evaluate the parenting abilities of both parents in the context of the best interest of the child. The psychologist recommended that, considering the "McDonald's incident," the Court should eliminate or limit Schorr's weekend visits with his son. During the pendency of the divorce, Schorr has alternating weekend visits with his son and dinner with him each Tuesday. In response to the psychologist's statements, Schorr has filed a lawsuit against her for defamation. As the suit was filed in early November, there is little information available regarding its progress.

During the pendency of a divorce action where child custody and visitation is a disputed issue, each party's parenting is under strict scrutiny. In the Schorr case, one father's attempt to teach his son discipline cost him time with his child. It is hard to imagine that legal parenting tactics such as spanking (within reason) and other various forms of discipline can result in a parent losing custody of his or her child. Outside of the parameters of a divorce case, if a problem is reported to authorities, such parenting decisions would be evaluated by Child Protective Services ("CPS") rather than a court-appointed psychologist. It is not likely CPS would have removed a child from his father's care based on the McDonald's event described above. This is a cautionary tale for all parents involved in a custody dispute, even one "mistake" could cost you valuable time with your children.

In a California custody case, the court, the parties, or the attorneys have the ability to request a neutral evaluation be conducted by a mental health professional (like in the Schorr case). If both sides agree a neutral is needed, they can stipulate (agree) to appoint an evaluator without Court intervention. Generally, once the evaluation is complete, the evaluator will prepare a report outlining his or her findings. The expert's report may be read by both parties and the judge in the case.

Continue reading "New York Dad Loses Custody Battle Over Fast Food Dispute" »

Coping with Divorce: Is it Harder for Men?

March 11, 2014

mens-health-Coping-with-Divorce.jpgDespite their typical tough exterior, recent studies indicate that men actually seem to have a more difficult time coping with divorce than women. Unfortunately, studies also show that divorced men are more likely to have heart disease, strokes, high blood pressure, and commit suicide.

One reason why men may have a more difficult time coping with divorce is because oftentimes men don't let themselves properly grieve during the divorce process. Unlike most women, men tend to bottle up their feelings and oppose therapy or other means of getting their emotions out. As a result, they are less likely to lean on others for support and to release their built up emotions and stress stemming from the divorce.

Women, on the other hand, are much more apt to seek assistance from friends, family, a therapist or even a support group regarding their emotions. Doing so helps women to be more emotionally prepared to tackle the challenges and stressors that come with a divorce. Without the ability to properly grieve and reach out to others for support, men are more likely to experience feelings of depression. If men want to properly grieve and allow themselves to heal during and after a divorce, it's necessary to put aside the "Men don't cry" and "I can do this alone" attitude and instead reach out to those who can help with the grieving process. Addressing emotions early on can help the grieving process later on down the road.

Another reason men may have a harder time coping with divorce is because they tend to lose their sense of identity as a result of the divorce. This is especially true when the man's role in the marriage is the "breadwinner" and "protector" and then they become disconnected from their children during or after the divorce. Many men have a paternal instinct to be a provider so when the family dynamic changes because of a divorce, men are often times forced to re-identify their role. Those men who remain very connected and involved in their children's lives, however, tend to have an easier time re-instilling any lost sense of identity and belonging.

Continue reading "Coping with Divorce: Is it Harder for Men?" »

How Much Will My California Divorce Cost?

One of the most common questions asked in an initial divorce consultation is "how much will this divorce cost me?" Many prospective clients are surprised when divorce attorneys answer "I have no idea". The only concrete information a family law attorney can provide clients regarding the cost of their divorce matter is the filing fees imposed by the courts ($435 in 2013). Other than basic hard costs and billing methods, divorce attorneys can provide clients with little information regarding the cost of their divorce at the initial consultation because the overall cost is based on a combination of the following factors.

California-divorce-cost.jpgThe Client: A family law client has the ability to greatly influence the cost of his or her divorce. If the client needs a lot of counseling or "hand holding" his or her bills will generally be much higher because the clients repeated phone calls and e-mails substantially increase the time an attorney devotes to the case. Considering the fact that a vast majority of family law attorneys charge an hourly billing rate, daily e-mails and phone calls could potentially add up to thousands of dollars per month.

The Opposing Party: Generally the attitude of the opposing party falls into one of a few categories: (1) emotionally stable and ready to move on with his or her life, (2) angry, vindictive, and willing to do anything to "get back at" his or her spouse, (3) hopeful that the parties can reconcile and therefore doing everything possible to delay the divorce process or (4) self-proclaimed victim who is busy feeling sorry for him/herself. If the opposing party wishes to drag out the divorce process, for whatever reason, there are endless methods of doing this. Delay is particularly easy for a non-represented party who does not incur attorney fees by filing countless motions, propounding burdensome discovery, or litigating every small issue.

The Opposing Counsel: Just like repeated communication with the client can increase attorney fees, onerous correspondence from the opposing attorney can greatly increase the cost of a divorce. This is because attorneys generally have a duty to read and respond to all pleadings and correspondence from the other side. Further, family law attorneys generally have a reputation for either working amicably with the other side to reach a mutually beneficial agreement whenever possible or for using their client's vulnerable state to fuel litigation for their own financial gain. Therefore, the general practice of the opposing attorney will likely minimize or increase the overall cost of divorce.

Judge-divorce-court.jpgThe Judge/Court: Every family law judge in San Diego is different. As such, every judge has a different calendar, schedule, and view of each case. Many of the court calendars are impacted and family law motions go months before being heard.

Number/Complexity of Contested Issues: The number and complexity of the contested issues in a divorce case is a major factor in the overall cost. For example, if the parties were married for 15 years but have no children, no real property, no retirement accounts/savings, and both earn similar incomes there will be few issues to litigate. However, if the parties were married for three years but have two minor children, retirement accounts, own a home and only one spouse works, the parties will have to address property division, custody and visitation, and support issues. The more contested issues that exist, the longer and more expensive the divorce will be. However, if the contested issues are not complex, a simple hearing will generally resolve the disputes and keep costs low.

Continue reading "How Much Will My California Divorce Cost?" »

Jennifer Lopez Plans to Take Back Maiden Name Post-Divorce

March 6, 2014

n-JENNIFER-LOPEZ-large-001.jpgMany women choose to take their husband's last name when they get married. Jennifer Lopez, known by many as "JLo", did just that when she married Marc Anthony in 2004. According to her legal documents, JLo's legal name is Jennifer Muniz, which is her husband's legal last name. But, according to TMZ, now that the couple is on the road to divorce "JLo" is adamant about getting her maiden name back!

Just like you made the choice to take your soon to be ex-husband's last name when you got married, you can chose to restore your maiden name post-divorce or just keep your married last name, despite the divorce. Some considerations to think about when deciding whether or not to change your name are the impact a name change has with regards to your children, your profession and your well-being. Some women prefer not to have a different last name as their children and therefore keep their married name. To others, this isn't that big of a deal. If you made a name for yourself at work before marriage and then put work on hold during your marriage, perhaps you will want your maiden name back so you can return to the same industry post-divorce and be recognized a bit easier. When deciding whether or not to change your name back it's also important to think about whether it's worth the extra time and hassle to change your name on your driver's license, passport, financial accounts, etc. Perhaps you are more comfortable with your married name because that's how the people in your community know you, or maybe you want nothing to do with your soon to be ex-husband and want a fresh start. Either way, divorce attorneys will advise their clients that changing your last name back after a divorce is a personal decision and you are entitled to do as you wish. Your soon to be ex-husband cannot force you to change your last name back or to keep your married name.

Changing your name back to your maiden name can be done either at the time of the divorce or at a later date after your divorce is final. However, if you already know that you want your maiden name back, it's a good idea to go ahead and take care of it during the divorce process. A specific provision can be included in your marital settlement agreement such as the following: "This Judgment incorporating the terms of this Agreement shall restore to Wife her former name of ____." Doing so will allow you to avoid any stress or time related to going through the process to change your name after the divorce has already been finalized.

Continue reading "Jennifer Lopez Plans to Take Back Maiden Name Post-Divorce" »

New Spousal Support Laws not as Impactful as Reformers Hoped

spousal-support-and-divorce-001.jpgAs we have previously blogged, states along the East Coast have begun a movement to reform spousal support (what their laws refer to as "alimony"). The reformers argue that in many cases spousal support awards persist too long or at too high of a level after divorce. In order to reduce this problem, the reformers propose laws which focus on rebuilding the parties' lives after divorce and encourage supported spouses to learn to take care of themselves. We discussed the potential impact of these new laws and what effect they might have on California legislation. In particular, Massachusetts enacted a new spousal support law last year that was praised as a model for future reform. Although the new law has been in place for a reasonable period of time, reformers are not very satisfied with the results.

In order to accomplish the goal of encouraging spouses to become self-supporting post-divorce, the new "alimony laws" set time limits on spousal support for marriages of 20 years or less and generally stop spousal support payments when the supporting spouse reaches retirement age. By contrast, in California, there is generally no time limit placed on spousal support awards made pursuant to a long term marriage (defined as any marriage lasting approximately 10 years or more).

In addition, the new laws place strict restrictions on cohabitation. Under the reformed laws, spousal support will end if the supported spouse cohabitates with a new partner for at least three months. One of the issues which has arisen regarding the cohabitation clause is whether it applies to supported spouses who moved in with a new partner before the new law took effect. Currently in California, cohabitation is a factor that might be considered a "material change of circumstances" in a post-judgment support modification motion; but it is not grounds for automatic termination of support. California and Massachusetts do seem to share the general public policy disfavoring continued spousal support when the supported spouse moves in with his or her new partner.

Change can be difficult to effectuate in any area of law where the decision makers are comfortable in their "old ways". Some complain that Massachusetts judges are to blame for stifling the progress of new legislation. These judges are accused of misinterpreting or even ignoring the law which encourages spouses to become self-supporting after divorce. Family law is notorious for giving judicial officers wide discretion. Appeals are not generally successful unless the appellate can prove abuse of discretion.

Continue reading "New Spousal Support Laws not as Impactful as Reformers Hoped" »

Four Common Mistakes to Avoid During Divorce.

March 4, 2014

In October of 2013, Orlando Bloom and Miranda Kerr announced that they will be ending their marriage. However, TMZ reports that despite their impending divorce, they still intend to remain a family and hold no hard feelings against one another. Although this attitude could change as the divorce progresses, perhaps Bloom and Kerr will instead be an example of how divorce doesn't always have to be a nuclear experience. However, this will likely only be achieved if they avoid some of the common mistakes described below.

1. Avoid Responding to the Divorce with Anger
The divorce process can be an extremely emotional time and it's very typical for people to say things they do not mean or to act in uncharacteristic manners. Responding to the divorce with anger will simply create an escalating war between you and your spouse and will lead you nowhere but backwards. Instead, let a little time pass and try to blow off some steam before reacting so that you can move the divorce forward in a reasonable manner.

2. Avoid Bringing a Significant Other Into the Mix
While you might have the urge to announce your new lover as a form of revenge to prove to your spouse that someone else finds you attractive and that you can be happy without your spouse, the divorce process is already potentially volatile so just mentioning that you have a new lover has the potential to absolutely infuriate your spouse. The more infuriated your spouse is with you, the less chance you have of a quick and painless divorce. Thus, it might just be best to wait until the divorce is over before you think about engaging in a new relationship.

3. Avoid Concealing Information
Many people going through a divorce find it quite tempting to omit or conceal pertinent information in their divorce case, typically surrounding finances. If you think that nobody will ever find out, think again. The majority of times someone like a forensic accountant or a private investigator for instance, does find out. And when this happens, you immediately lose credibility and cause increased litigation costs. All in all, hiding information is just not worth it.

4. Avoid Reducing the Time Spent With Your Kids
family-time-and-divorce.jpgDuring the divorce one spouse typically moves out of the family home at some point. When this happens, that spouse tends to get preoccupied with the divorce process, or gets busy with work trying to make more money to be able to afford living away from the family home. As a result, time spent with the kids is often much less than what it used to be. This is one mistake to surely avoid. During your divorce, spending time with your children should be one of your top priorities. It might also be a good idea to keep a journal logging hours spent with your kids and what you did during those times. When it comes to child custody determination this might be helpful. More importantly, spending time with your children will probably help make you feel whole, despite the destruction that divorce is causing.

Continue reading "Four Common Mistakes to Avoid During Divorce." »

How Will Divorce Affect My Social Security?

Divorce can have a devastating effect on many aspects of the parties' lives. In some cases, the parties may not even realize the full effect of the divorce for years to come. For example, in the heat of litigation many spouses may not consider how divorce will impact their social security benefits. In order to get specific information regarding your case, it is important to consult with a divorce attorney who is a financial specialist. However, below are a few general principles to consider.

social-security-and-divorce.jpgThe first factor to consider in any social security analysis in the context of divorce is the length of the marriage. Neither spouse will be entitled to the other's social security benefits unless the marriage lasted 10 years or more. A marriage which lasts 10 years or more is typically considered a "long-term marriage". For the purposes of spousal support, if a marriage lasts less than 10 years, the length of a spouse's spousal support obligation is generally limited to half the length of the marriage. In a marriage of long duration, the term of spousal support will likely not be limited to half the length of the marriage. Therefore, the length of the marriage will be a significant issue in the context of social security and the divorce in general.

If you are looking to collect social security benefits based on your former spouse's earning record, the next factor that your divorce attorney will ask you to consider is your marital status. You cannot collect social security benefits based on your former spouse's earning record if you are currently married. However, if you remarried following your divorce and your second marriage ended in death, divorce or annulment, you may still be able to collect social security benefits as a result of your first marriage. Further, the benefit you would collect based on your former spouse's earning record must be higher than what you are eligible to collect based on your own earning record.

In order to collect social security benefits as described above, you must meet age requirements and your spouse must meet eligibility requirements. The minimum age to collect social security benefits is age 62. In addition, your former spouse must be eligible to collect or currently receiving social security benefits. In other words, you cannot collect benefits based on your former spouse's income if he or she is not eligible to collect. If your former spouse is eligible to collect his or her social security benefits but has elected not to receive them yet, you must have been divorced for a minimum of two years before you can collect based on your former spouse's earnings. If you are considering a divorce, the effect it may have on your social security benefits is another factor to keep in mind when planning for your retirement years.

Continue reading "How Will Divorce Affect My Social Security?" »

Are Women Who are the Breadwinners More Likely to Get Divorced?

February 28, 2014

In our modern world, it is no longer uncommon for the wife to be the breadwinner of the family. Research has actually shown that in more than 40% of households the wife is the main breadwinner. More and more husbands, on the other hand, are becoming stay at home fathers, taking over traditional female roles and running the home front while the wives are out in the working world and taking responsibility for "bringing home the bacon." Divorce attorneys are encountering this type of family dynamic more and more in dissolution cases. This increase in female breadwinners challenges the societal norms and traditional gender-based expectations of men being the financial contributor and women taking care of the house and family.

female-breadwinners-divorce.jpgAlong with this new and rising family dynamic also comes a rise in new relationship challenges. In fact, research findings report that both husbands and wives tend to be less happy when the female is the breadwinner. Given these findings it isn't too shocking that the risk of divorce rises when the wife is the breadwinner. Recent studies even report that the divorce rate is 50% higher when the wife earns more than her husband.

So why is it that women who earn more than their husbands have a much less chance of a successful marriage? Perhaps it's because couples don't discuss and define their financial and support roles and come to some kind of agreement - something that could be addressed in a premarital agreement. It might be that expectations become muddled and lead to an increase in relationship conflicts. Or perhaps it's because the women are shouldering all of the financial burdens by working long, tiring hours and yet the men are perceived to be failing to take on a comparable amount of responsibilities on the domestic front. Research also suggests that the social stigma attached to a female breadwinner is also the culprit of subconscious anger and jealousy in marital relationships because the women are more likely to feel that their husbands are not pulling enough weight in the marriage.

Continue reading "Are Women Who are the Breadwinners More Likely to Get Divorced?" »

Do I Have to Move Out to be Separated from My Spouse?

Separate Residence in Divorce - Keys The "date of separation" is one of the most important issues to determine at the beginning of any divorce case. The date of separation marks the end of the martial community and represents the termination of the marriage for the purposes of determining the length of the marriage. From the date of separation forward, all earnings and accumulations of both parties are their separate property. In order for the date of separation to occur the following two factors must be present: (1) the parties must be living "separate and apart" and (2) at least one spouse must have the subjective intent (evident through objectively evaluated actions) never to resume the marital relationship. Until recently, many San Diego family law attorneys believed that, in order to live separate and apart, the spouses needed to maintain two separate residences. However, this issue has always been debatable for other divorce attorneys.

On October 25, 2013, the First District Court of Appeal cleared up the "living separate and apart" debate for the family law community. The First District Court of Appeal sustained a trial court's holding in In re Marriage of Davis which stands for the proposition that it is not necessary for spouses to maintain two separate residences in order to be "separated" for the purposes of determining date of separation. The court opined that factors, other than living in two separate residences could satisfy the "separate and apart" requirement to establish the date of separation. In particular, the court relied on a change in how the parties handled their finances and the fact that Ms. Davis filed for divorce in its conclusion that the parties lived "separate and apart" while still residing under the same roof.

If you believe you have separated from your spouse but are still living in the same residence with him or her, you might consider the actions of the Davis couple in order to establish a case for date of separation. One of the most important considerations in the Davis case was the change in how the parties handled their finances. In Davis, the parties began depositing their individual earnings into separate bank accounts. Each month, the parties would deposit a certain amount of funds into a joint account which would be used to maintain the household expenses. However, each party was responsible to pay for their own personal expenses with their separate funds. In addition to separating their finances, in Davis the parties began to sleep in separate bedrooms and ceased sexual relations.

In general, the Court will look for a shift in the parties' behavior to determine the date of separation. Therefore, if the parties have always maintained separate bank accounts throughout marriage, the Court will not likely give as much weight to that factor as it did in the Davis case.

Continue reading "Do I Have to Move Out to be Separated from My Spouse?" »

Should Jail Time be a Last Resort for Failure to Pay Child Support?

February 26, 2014

As originally reported by TMZ, Jermaine Jackson, well known singer and member of The Jackson 5, may have fallen behind in child support payments but it appears he may have taken care of his arrears after all. TMZ reported that Jackson was falling farther and farther behind on the $3,000 per month child support that he has been ordered to pay to Alejandra Jackson for their 17-year-old son, Jafaar, and 13-year-old son, Jermajesty. He also reportedly had $12,000 in child support arrears that were owed, of which he had allegedly only paid $85. TMZ also reported that L.A. County Child Support Services Department had filed papers asking the court to hold Jackson in contempt, which could have ended up landing him in jail.

Child Playing in FieldBut is jail really the best answer for parents who have been obligated to pay child support, but who are failing to pay? Perhaps there are some legitimate reasons why jail time should be the very last resort. Courts seem to agree. It is much more common for a court to order a form of interception of the income of the person who owes child support (i.e. wage garnishments, taking tax refunds, etc.), revoke his or her license, or even impose fines before sending the person behind bars. The reason courts are more inclined to do this is because they are focused on getting the money to the children rather than punishing the offender. After all, the Court's ultimate goal is to promote what is in the best interests of the children by fostering the relationship between the children and the parents and by making sure that the children's needs are taken care of.

The purpose of jail time for parents who are delinquent on child support (and who are found to be in contempt of court) is to attempt to coerce him or her into paying the child support that has been ordered. However, if the person who is behind on child support payments gets locked up behind bars then he or she has less chance of earning the income necessary to pay the child support. Also, jail time will likely just further alienate him or her from the children.

Thus, time behind bars for failure to pay child support seems like it would just end up causing more detriment than benefit, especially to the children involved. Since the Court's goal is to protect the children, it makes sense that jail time should be a last resort in these situations. As for Jackson, it appears that he has made amends in some way, though, as the father and his two sons were spotted out together in Los Angeles in November 2013 - just about a month after his potential legal troubles broke news.

If you are considering a divorce from your spouse or have questions regarding the enforcement of child support orders, please contact our experienced attorneys.

Continue reading "Should Jail Time be a Last Resort for Failure to Pay Child Support?" »

Why Should I Get a Premarital Agreement?

benefits of a pre-nupMany engaged couples in San Diego contemplate getting a premarital agreement (otherwise known as a prenuptial agreement) before they take their walk down the aisle. However, many future brides and groom never bring the subject up with their future spouse for a variety reasons. For example, parties often misunderstand many elements of the premarital agreement process, are afraid of their partner's reaction, and resent the stigma that getting a premarital agreement equates to a lack of faith in the marital relationship. However, there are many benefits to getting a premarital agreement as explained below which should also be considered by those contemplating a premarital agreement.

Unintended Outcome
All couples who marry in California without signing a formal premarital agreement have entered into a different type of premarital agreement known as the California Community Property Law. If parties to do not contract otherwise, the default family code provisions governing property division and spousal support will apply upon divorce. There are so many rumors, myths, and misconceptions floating around about California divorce law that many divorcing couples are surprised about their legal rights upon divorce. By discussing a premarital agreement with an experienced family law attorney prior to marriage, both parties can become informed regarding default legal provisions. More importantly, the parties can reach agreements to create the outcomes they intend and expect upon divorce.

Many laws regarding spousal support and the division of marital property contain many elements and factors. Further, California family court judges have a lot of discretion to determine fair and reasonable outcomes. Considering these two facts together, the outcome of a California divorce is nearly impossible to predict. A premarital agreement can provide certainty and peace of mind to parties considering divorce. Premarital agreements provide parties with the opportunity to protect businesses, family assets, and future income.

A premarital agreement is relatively inexpensive compared to a contested divorce which is litigated due to the upset expectations of the parties and uncertainty in family law. As recently modeled by California celebrity divorces, the dissolution process can be so lengthy and drawn out that sometimes it can extend longer than the underlying marriage. One disputed issue can result in multiple hearings or even a trial which can cost tens of thousands of dollars. Depending on the complexity of the case, the cost of a premarital agreement will not likely exceed the cost of just one hotly contested issue in a divorce case. Litigating a divorce also comes at a high emotional cost. By resolving the distribution of property and spousal support prior to (or even during) marriage, parties can avoid the emotional turmoil that accompanies divorce litigation.

Continue reading "Why Should I Get a Premarital Agreement?" »

Can a Non-Biological Father Really Be on the Hook for Child Support?

February 4, 2014

Non-Biological FatherAfter five years of marriage, famous rapper and producer Timbaland is on the road to divorce according to TMZ. His wife, Monique Mosley, is apparently requesting child support not only for their five-year-old daughter but also for Mosley's ten-year-old child from a previous relationship. Mosley believes that her request is fair because she alleges that Timbaland publicly and privately proclaimed the child as his own. Although it may seem crazy to make a non-biological father fork over money for a kid that isn't even his, we sometimes come across clients who want to know if it is actually a possibility. Although the responsibility to support a non-biological child would typically end upon divorce from the child's mother, a non-bioloigcal father may be ordered to pay child support based on his behavior, rather than his legal status. In other words, the non-biological father may be liable for child support if he holds himself out to the child as the child's parent and the child believes him to be his father.

For example, in the case Clevenger v. Clevenger (1961), Husband was not the natural father yet he put his name on the child's birth certificate, accepted the child into his home and held the child out as his own for over a decade. The court identified a policy by which a non-biological father cannot avoid liability for child support following a divorce from the child's mother if the non-biological father expressly represented himself to be the child's natural father and the child believed him to be the natural father.

Father Walking by BeachAnother example can be examined in the case In re Marriage of Valle (1975), where a husband was ordered to pay support for his in-law's children because he continuously represented that the children were his, the children referred to him as "Daddy" and the children had no contact or memory of their natural parents. The court held that because the non-biological father acted like a parent and his behavior effectively precluded the children from having the opportunity to re-establish a relationship with their natural parents, the court was able to hold him liable for child support.

If you are a non-biological parent and curious whether you may be on the hook for child support, look at whether your day-to-day role is a parent for the child and whether the child has come to see you as being his/her "real" parent. However, note that the latter is sometimes difficult to prove as the non-biological parent would essentially have to interfere with the child's ability to know that someone else is actually the biological parent.

If you are in a situation like Timbaland and his wife and you are curious about your rights regarding requesting or paying child support, contact us today to schedule a consultation.

Continue reading "Can a Non-Biological Father Really Be on the Hook for Child Support?" »

Kelly Clarkson Marries With No Premarital Agreement?

Kelly Clarkson marries with no prenupAmerican Idol winner Kelly Clarkson married fiancé Brandon Blackstone on October 20, 2013 in a quiet Tennessee ceremony. Although Clarkson has won 3 Grammys, 4 American Music Awards, and 13 Billboard awards throughout her successful singing career, no premarital agreement was reported before her wedding. Clarkson has been known to frequently "Tweet" about her happy relationship with Blackstone; however, even the happiest couples sign premarital agreements in some cases.

A premarital agreement, often referred to as a "pre-nup," is a contract containing spousal support and/or property division terms that would control in the event of a divorce. Without a premarital agreement, the community property laws of the State of California control property division upon divorce. Celebrities and high powered business people are the first ones to come to mind when discussing pre-nups; however, divorce attorneys report a jump in these agreements between people from all walks of life over the past ten years.

Many family law attorneys attribute the rise in premarital agreements to the fact that more people remarry later in life and are now looking to protect existing separate property assets. In addition, considering that many people are marrying for the second and third time as they get older, they also enter into premarital agreements to protect their children from their first and/or second marriages. Premarital agreements become more crucial when people enter into marriages with a significant amount of wealth or property. However, they can be entered into by any couple when they marry and can be altered over time as the parties acquire wealth and property.

If a couple marries without a premarital agreement but later wish they had taken that legal step, they have the option of entering into a post-nuptial agreement. A post-nuptial agreement can serve the same purposes as a premarital agreement. The only major difference between a premarital agreement and a post-nuptial agreement is that a post-nuptial agreement is signed after marriage. Therefore if Clarkson and Blackstone would like to reach a legally binding agreement regarding property and/or spousal support in the event of divorce, they could easily do so by signing a post-nuptial agreement.

Many couples avoid premarital agreements
because of the stigma attached to signing one. Engaged couples considering a premarital agreement may not discuss it with their significant others or family in order to avoid accusations that they don't believe their marriage will last. Singing a premarital agreement does not mean that the parties are already considering divorce or that they don't trust each other. In fact, a premarital agreement can be a great tool to get couples talking about financial issues and improve communication on these topics.

Continue reading "Kelly Clarkson Marries With No Premarital Agreement?" »

The Significance of Hitting the Ten-Year Mark in Marriage

December 23, 2013

10 year marriageSo you've been married for 9 years and you know your marriage has hit a point where you are ready to get out. Perhaps you and your spouse have talked about your impending divorce or maybe it's just a thought you've had in the back of your mind lately.

Either way, is it worth it to stretch the marriage past that ten-year mark? In California, there are several reasons why it might be in your best interest to reach the ten-year marriage mark before seeking to get a divorce

Spousal Support

There are special spousal support rules in California for marriages that are ten years or longer in duration. If a marriage lasted less than ten years, the court will typically order spousal support for a period equal to one half the length of the marriage. However, for a marriage that lasted more than ten years (from date of marriage to the date of separation), the court recognizes it as a "marriage of long duration". This means that the court retains jurisdiction over spousal support and may not set a termination of spousal support date without the parties' agreement. Thus, the spouse entitled to spousal support may be entitled to receive spousal support for life or until remarriage. The parties will be required to come back to court in the future to determine whether the spousal support obligation will continue.

Military Benefits

A marriage lasting at least ten years is also important if your soon-to-be ex-spouse is in the military and will be eligible for retirement benefits. If you were married for at least ten years and that time overlaps with ten years of military service, then you will be eligible to qualify for direct enforcement. This means that your portion of military retirement pay will be paid directly to you by the military finance office (who will garnish the service member's retirement and pay the ex-spouse directly), rather than the service member writing you a check each month.

Social Security Benefits

Another benefit of a marriage of at least ten years is that the Social Security Administration considers it to be a "long-term marriage," making you eligible for Social Security benefits based on your soon to be ex-spouse's earnings record when you reach the age of retirement (as long as you aren't remarried to another person at the time). Read more about retirement benefits and divorce.

No matter how good the financial benefits seem for a marriage lasting longer than ten years, there are some situations in which you should not wait. If, for instance, there is any danger to you or your children, then it is important for you to focus on your safety rather than the potential benefits of staying in the marriage for a longer period of time.

Continue reading "The Significance of Hitting the Ten-Year Mark in Marriage" »